Onus on employers to eliminate sexual misconduct

Employers will be responsible for stopping sexual harassment and discrimination at work under new laws introduced to Federal Parliament on Tuesday.

The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 will implement seven further legislative changes recommended by Sex Discrimination Commissioner Kate Jenkins in her Respect@Work report, released in March 2020.

The previous Coalition Government enacted some of the recommendations in its Respect at Work Amendment Act, which came into effect in September 2021.

READ: WA Government responds to sexual harassment inquiry

The new legislation places the onus on employers to take “reasonable and proportionate” measures to eliminate sexual discrimination, sexual harassment and victimisation in the workplace as much as possible.

In releasing the Bill, the Government said that although courts have determined that conduct that results in a hostile work environment may be captured through existing provisions of the Sex Discrimination Act, this is not well understood or recognised by employers and persons conducting a business or undertaking (PCBUs).

In part, the Bill sets out the meaning of subjecting a person to a hostile workplace environment, which includes a requirement that a reasonable person would have anticipated the possibility of the conduct being offensive, intimidating or humiliating to someone by reason of their sex or characteristics that generally appertain or are imputed to persons of their sex.

The circumstances to be considered when determining whether the conduct is unlawful include:

  • the seriousness of the conduct;
  • whether the conduct was continuous or repetitive;
  • the role, influence or authority of the person engaging in the conduct; and
  • any other relevant circumstance.

The provision is intended to align with other provisions in the Sex Discrimination Act by using existing terms and concepts, such as ‘offensive, intimidating or humiliating’ and the reasonable person test. This would enable existing case law to be considered when interpreting and applying the new provision.

The inclusion of this provision largely duplicates existing obligations under the respective Work Health and Safety legislation to take reasonable steps to provide a safe workplace, including minimising the risk of harassment and discrimination.

Read the full Bill.

The Australian Human Rights Commission will also be given new powers to assess and enforce compliance with this new requirement, including the capacity to give compliance notices to employers who are not meeting their obligations.

Other changes include introducing a law that expressly prohibits conduct that results in a hostile workplace environment on the basis of sex; and ensuring Commonwealth public sector organisations are also required to report to the Workplace Gender Equality Agency on its gender equality indicators.

In sum, the Bill will implement recommendations 16, 17, 18, 19, 23, 25 and 43 of the Respect@Work report. It will also make a number of ancillary amendments arising from the changes made by the Respect at Work Act 2021 to provide consistency across the Federal anti-discrimination framework and achieve the intended outcomes of the Respect@Work report.

The Minister for Employment and Workplace Relations, Tony Burke, is separately progressing the inclusion of a prohibition on sexual harassment in the Fair Work Act 2009 (Cth).

The Bill is expected to be referred to a Senate Committee for inquiry.

More on how to handle sexual harassment in the workplace can be found in our exclusive members-only Business Toolbox.

Members can contact CCIWA’s Employee Relations Advice Centre for free advice on sexual harassment matters on (08) 9365 7660, or email [email protected].

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